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Fragment: Notes For Speeches, October 1, 1858

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At Freeport I propounded four distinct interrogations to Judge Douglas, all which he assumed to answer. I say he assumed to answer them; for he did not very distinctly answer any of them.

To the first, which is in these words, "If the people of Kansas shall, by means entirely unobjectionable in all other respects, adopt a State constitution, and ask admission into the Union under it, before they have the requisite number of inhabitants according to the English bill,-- some ninety-three thousand,--will you vote to admit them?" the judge did not answer "Yes" or "No," "I would" or "I would not," nor did he answer in any other such distinct way. But he did so answer that I infer he would vote for the admission of Kansas in the supposed case stated in the interrogatory--that, other objections out of the way, he would vote to admit Kansas before she had the requisite population according to the English bill. I mention this now to elicit an assurance that I correctly understood the judge on this point.

To my second interrogatory, which is in these words, "Can the people of a United States Territory, in any lawful way, against the wish of

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any citizen of the United States, exclude slavery from their limits, prior to the formation of a State constitution?" the judge answers that they can, and he proceeds to show how they can exclude it. The how, as he gives it, is by withholding friendly legislation and adopting unfriendly legislation. As he thinks, the people still can, by doing nothing to help slavery and by a little unfriendly leaning against it, exclude it from their limits. This is his position. This position and the Dred Scott decision are absolutely inconsistent. The judge furiously indorses the Dred Scott decision; and that decision holds that the United States Constitution guarantees to the citizens of the United States the right to hold slaves in the Territories, and that neither Congress nor a territorial legislature can destroy or abridge that right. In the teeth of this, where can the judge find room for his unfriendly legislation against their right? The members of a territorial legislature are sworn to support the Constitution of the United States. How dare they legislate unfriendly to a right guaranteed by that Constitution? And if they should how quickly would the courts hold their work to be unconstitutional and void! But doubtless the judge's chief reliance to sustain his proposition that the people can exclude slavery, is based upon

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non-action--upon withholding friendly legislation. But can members of a territorial legislature, having sworn to support the United States Constitution, conscientiously withhold necessary legislative protection to a right guaranteed by that Constitution?

Again, will not the courts, without territorial legislation, find a remedy for the evasion of a right guaranteed by the United States Constitution? It is a maxim of the courts that "there is no right without a remedy." But, as a matter of fact, non-action, both legislative and judicial, will not exclude slavery from any place. It is of record that Dred Scott and his family were held in actual slavery in Kansas without any friendly legislation or judicial assistance. It is well known that other negroes were held in actual slavery at the military post in Kansas under precisely the same circumstances. This was not only done without any friendly legislation, but in direct disregard of the congressional prohibition,--the Missouri Compromise,--then supposed to be valid, thus showing that it requires positive law to be both made and executed to keep actual slavery out of any Territory where any owner chooses to take it. Slavery having actually gone into a territory to some extent, without local legislation in its favor, and against congressional

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prohibition, how much more will it go there now that by a judicial decision that congressional prohibition is swept away, and the constitutional guaranty of property declared to apply to slavery in the Territories.

But this is not all. Slavery was originally planted on this continent without the aid of friendly legislation. History proves this. After it was actually in existence to a sufficient extent to become, in some sort, a public interest, it began to receive legislative attention, but not before. How futile, then, is the proposition that the people of a Territory can exclude slavery by simply not legislating in its favor. Learned disputants use what they call the argumentum ad homlnem--a course of argument which does not intrinsically reach the issue, but merely turns the adversary against himself. There are at least two arguments of this sort which may easily be turned against Judge Douglas's proposition that the people of a Territory can lawfully exclude slavery from their limits prior to forming a State constitution. In his report of the 12th of March, 1856, on page 28, Judge Douglas says: "The sovereignty of a Territory remains in abeyance, suspended in the United States, in trust for the people, until they shall be admitted into the Union as a State." If so,--if they have no active living

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sovereignty,--how can they readily enact the judge's unfriendly legislation to slavery?

But in 1856, on the floor of the Senate, Judge Trumbull asked Judge Douglas the direct question, "Can the people of a Territory exclude slavery prior to forming a State constitution?" and Judge Douglas answered, "That is a question for the Supreme Court." I think he made the same answer to the same question more than once. But now, when the Supreme Court has decided that the people of a Territory cannot so exclude slavery, Judge Douglas shifts his ground, saying the people can exclude it, and thus virtually saying it is not a question for the Supreme Court.

I am aware Judge Douglas avoids admitting in direct terms that the Supreme Court have decided against the power of the people of a Territory to exclude slavery. He also avoids saying directly that they have not so decided; but he labors to leave the impression that he thinks they have not so decided. For instance, in his Springfield speech of July 17, 1858, Judge Douglas, speaking of me says: "He infers that it [the court] would decide that the territorial legislatures could not prohibit slavery. I will not stop to inquire whether the courts will carry the decision that far or not." The court has already carried the decision exactly that

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far, and I must say I think Judge Douglas very well knows it has. After stating that Congress cannot prohibit slavery in the Territories, the court adds: "And if Congress itself cannot do this, if it be beyond the powers conferred on the Federal Government, it will be admitted, we presume, that it could not authorize a territorial government to exercise them, it could confer no power on any local government, established by its authority, to violate the provisions of the Constitution."

Can any mortal man misunderstand this language? Does not Judge Douglas equivocate when he pretends not to know that the Supreme Court has decided that the people of a Territory cannot exclude slavery prior to forming a State constitution?

My third interrogatory to the judge is in these words: "If the Supreme Court of the United States shall decide that States cannot exclude slavery from their limits, are you in favor of acquiescing in, adopting, and following such decision as a rule of political action?" To this question the judge gives no answer whatever. He disposes of it by an attempt to ridicule the idea that the Supreme Court will ever make such a decision. When Judge Douglas is drawn up to a distinct point, there is significance in all he says, and in all he omits to say. In

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this case he will not, on the one hand, face the people and declare he will support such a decision when made, nor on the other will he trammel himself by saying he will not support it.

Now I propose to show, in the teeth of Judge Douglas's ridicule, that such a decision does logically and necessarily follow the Dred Scott decision. In that case the court holds that Congress can legislate for the Territories in some respects, and in others it cannot; that it cannot prohibit slavery in the Territories, because to do so would infringe the "right of property" guaranteed to the citizen by the fifth amendment to the Constitution, which provides that "no person shall be deprived of life, liberty, or property without due process of law." Unquestionably there is such a guaranty in the Constitution, whether or not the court rightfully apply it in this case. I propose to show, beyond the power of quibble, that that guaranty applies with all the force, if not more, to States than it does to Territories. The answers to two questions fix the whole thing: to whom is this guaranty given? and against whom does it protect those to whom it is given? The guaranty makes no distinction between persons in the States and those in the Territories; it is given to persons in the States certainly as much as,

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if not more than, to those in the Territories. "No person," under the shadow of the Constitution, "shall be deprived of life, liberty, or property without due process of law."

Against whom does this guaranty protect the rights of property? Not against Congress alone, but against the world--against State constitutions and laws, as well as against acts of Congress. The United States Constitution is the supreme law of the land; this guaranty of property is expressly given in that Constitution, in that supreme law; and no State constitution or law can override it. It is not a case where power over the subject is reserved to the States, because it is not expressly given to the General Government; it is a case where the guaranty is expressly given to the individual citizen, in and by the organic law of the General Government; and the duty of maintaining that guaranty is imposed upon that General Government, overriding all obstacles.

The following is the article of the Constitution containing the guaranty of property upon which the Dred Scott decision is based:

ARTICLE V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand July, except in cases arising in the land or naval forces, or in the

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militia when in actual service, in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.

Suppose, now, a provision in a State constitution should negative all the above propositions, declaring directly or substantially that "any person may be deprived of life, liberty, or property without due process of law," a direct contradiction--collision--would be pronounced between the United States Constitution and such State constitution. And can there be any doubt but that which is declared to be the supreme law would prevail over the other to the extent of the collision? Such State constitution would be unconstitutional.

There is no escape from this conclusion but in one way, and that is to deny that the Supreme Court, in the Dred Scott case, properly applies this constitutional guaranty of property. The Constitution itself impliedly admits that a person may be deprived of property by "due process of law," and the Republicans hold that if there be a law of Congress or territorial legislature telling the slaveholder in advance that he

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shall not bring his slave into the Territory upon pain of forfeiture, and he still will bring him he will be deprived of his property in such slave by "due process of law." And the same would be true in the case of taking a slave into a State against a State constitution or law prohibiting slavery.